November 03, 2008

Student Blogger - As Goes the Election, So Goes the Court

Professors Jeffrey A. Segal and Harold J. Spaeth faced a tough crowd on Wednesday evening as they presented their research at the Workshop on Judicial Behavior. Segal and Spaeth are ardent proponents of the attitudinal model of judicial decision making, which says that Supreme Court justices make decisions based on the juxtaposition of their own personal policy preferences and case stimuli. In other words, justices look at the facts of a case and apply their ideological attitudes and values in order to reach a decision – no legal reasoning necessary.

The attitudinal model is both troubling and intuitive at the same time. On the one hand, it seems disingenuous for justices to write lengthy opinions robust with legal analysis if their decisions merely hinge on their own personal policy choices. On the other, it seems that the American people have already accepted that justices make decisions according to their own policy preferences. This election season, supporters of John McCain and Barack Obama alike have stressed the importance of the upcoming election based on the likely potential for Supreme Court appointments. Just this week, editorials were published declaring that Obama's appointees would "replace justice with empathy in our nation's courtrooms" and that McCain's would exacerbate a "right-wing judicial imbalance" that threatens citizens' freedoms. Both parties seem convinced that the political ideology of potential appointees will have a far greater impact than their legal qualifications.

But if the attitudinal model is correct, then why was the majority opinion in District of Columbia v Heller,
which recently found that the Second Amendment ensures an individual
right to possess firearms, 64 pages long? (The dissents by Justices
Stevens and Breyer were 46 and 44 pages, respectively, totaling for a
154-page opinion). If the justices did nothing more than apply their
personal policy preferences to the facts of the case, then why all the
hoopla? According to Spaeth, Supreme Court opinions are, more or less,
merely hollow justifications: “If human beings have any unlimited
capability, it is their capacity to rationalize their behavior . . .
the authoritative character of government action and the need that
public officials have for acceptance, if not approval, commonly causes
them to take special pains to justify their decisions and make them
palatable to those who are governed by them.” Harold J. Spaeth, The
Attitudinal Model, in Contemplating Courts at 296 (ed Lee Epstein)
(1995).

Another explanation might be that lengthy opinions are a method of
giving broader effect to one’s ideological preferences. Lower court
judges must rely on Supreme Court precedent. So the more material
(legal reasoning designed to bolster a particular ideological view) a
justice provides, the greater an impact a case can have in moving the
law towards the majority’s ideological preference. Like-minded lower
court judges can then adopt such text to support similar, and
potentially even more extreme, ideological positions.

Although Segal and Spaeth contend that the attitudinal model can be
applied to judges at any court level, their studies have found the
strongest support for the attitudinal model when analyzing Supreme
Court justices. Segal and Spaeth believe their model seems most
applicable to the Supreme Court based, in part, on the nature of the
Supreme Court’s docket. Because the Supreme Court has the power to weed
out legally frivolous cases, the controversies that come before the
Court typically are legally ambiguous because there are strong legal
arguments in both directions. This means that justices have the freedom
to rule on either side of the issue because neither the textual
analysis, nor the lawmakers’ intent, nor the relevant Supreme Court
precedents are dispositive. But when these legal tools fail to
illuminate a clear legal answer, how should the justices decide cases?

Not surprisingly, several Chicago professors felt that justices
should perform cost-benefit analysis and then make decisions
accordingly. Under this model, policy preferences would change based on
changes in the environment. When benefits rose or costs fell, justices
would change their behavior. For example, it may be that individuals
who opposed FBI wiretapping prior to 9/11 would be more accepting of it
post-9/11. As one participant noted, that is not because of a change in
ideology, but because the stakes have changed: The benefit of catching
a thief was less than the benefit of catching a terrorist. It would be
a mistake, many participants felt, to conflate policy preferences (or
attitudes), which are subject to change based on external
circumstances, with ideology. Of course, how one weighs the costs and
benefits of any policy choice is likely to be heavily influenced by
one’s ideology: On the issue of abortion, a liberal will weigh the
costs and benefits with a thumb on the scale for women’s rights and
conservatives will place greater weight on the rights of the unborn
child.

Participants raised a number of challenges to the
attitudinal model. For example, one participant noted that between 30
and 40 percent of Supreme Court cases are unanimous, indicating these
decisions are either: (1) not decided ideologically, or (2) although
ideologically decided, the factual situation is so extreme that all
justices agree.

But the most basic obstacle for the attitudinal model may be that
there is a certain amount of inescapable circularity in labeling
justices “liberal” or “conservative” because a justice’s policy
preference (pro life or pro choice) may be informed by legal factors,
such as his or her interpretation of the text of the Constitution or
the founders’ intent. It is unclear why voting consistently on an issue
necessarily amounts to voting exclusively ideologically.

It also seems significant that data based on lower court judges
provides far less support for the attitudinal model. The mere fact that
some cases are “easy” indicates that legal analysis does play a vibrant
role in judicial decision making. Segal and Spaeth’s focus on the
Supreme Court then, as opposed to all levels of courts, might obfuscate
a fuller account of judicial decision making: Legal reasoning sets the
outer bounds (weeds out the “easy” cases), but ideological preferences
grease the joints. And, is that really a rejection of legal reasoning?
When the law is undefined, justices must still issue opinions.

Even at the Supreme Court level, participants raised doubts as to
whether the attitudinal model could account for the behavior of all
justices. As Judge Posner noted, although Justice Kennedy is generally
considered conservative, he is liberal on certain issues, like capital
punishment and homosexual rights. But describing him as “moderate” is
also inaccurate – he doesn’t tend to be in the middle on issues,
instead his policy preferences are sometimes liberal and sometimes
conservative. Justice Scalia’s voting pattern, by contrast, correlates
highly with his estimated level of conservatism. As a result, the
attitudinal model would explain less for Kennedy than for Scalia.
Posner concluded that perhaps “some justices are doctrinaires and some
are mavericks.” Segal’s response? “You betcha.”

Comments

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Kurland said years ago, the problem with the [it was Warren then] Court is a lack of judicial craftsmanship. He would have said that the attitudinal model has always been with us, but Justices used to be able to do a better job of hiding their attitudes within well crafted opinions based upon precedent. Were those Justices disingenuous? I think Kurland would have argued that judicial craftsmanship was an important factor in maintaining public respect for the court and the law. Transparent opinions that expose the politics and attitudes are a bit like letting the public watch sausages being made.